NSA in Utah: Is Privacy an Illusion Worth Pursuing?

by Wayne McCormack

I’m sorry that I probably put NSA listeners to sleep during the Olympics.

The revelations about National Security Agency illegal (or at least illicit) snooping and its capabilities just keep coming. First we found via Edward Snowden, what many of us had long suspected, that the NSA was routinely gathering at least phone and e-mail records of millions of U.S. residents against the apparent natural reading of the Foreign Intelligence Surveillance Act. The assertedly legal basis for this action is approval by the Foreign Intelligence Surveillance Court (FISC) of gathering data that is “relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.” Beginning about 2006, the FISC began construing “relevant” to include ordinary conversations unrelated to foreign intelligence because that would help the NSA determine what is not “ordinary.”

Then we found that the NSA had violated even this level of authorization “thousands of times per year,” according to internal audits of its own procedures. According to the Washington Post and Wall Street Journal, the NSA has the capability, and has used it on occasion, to store up to 75% of all telephone and e-mail traffic in the US every day.

The Chief Judge of the FISC has stated publicly that the court has no role in monitoring or policing what the NSA does. this is hardly surprising because the court has no investigative staff of its own, its proceedings are entirely one-sided (it hears only from the Government) and are secret from public scrutiny. In 2011, another judge of the FISC wrote an opinion detailing not just thousands of violations of the law but at least three recent deliberate misrepresentations (we don’t talk about “lies” in polite company) to the Court regarding its activities.

The Government has now gotten so tongue-in-cheek on this whole issue that they have created a website called “IC on the Record” (IC standing for Intelligence Community). The very first posting to the website is a formerly classified apologia from the Justice Department in December 2011 to the “House Select Committee on Intelligence” trying to justify the NSA’s activities. Wait, the funny part is that of the 15 pages in the now-declassified document, 12 are blacked out. The only part left readable claims that “FISC’s exhaustive analysis . . . refutes any argument that the court is a ‘rubber stamp,’ and demonstrates the rigorous nature of the oversight it conducts.” Oops, they forgot to mention that the Government was lying to the Court, according to the Court’s own findings.

We in Utah have a special affinity for the NSA because it has contributed millions of dollars to our economy in building an unimaginably colossal facility for holding all our electronic communications in Bluffdale, Utah. Of course, they are not paying any taxes on the land or the building, but maybe we can collect taxes on the salaries of the employees if they are not secret.

Now to the funny part. It has just been revealed that the NSA read all of Salt Lake e-mails during the 2002 Olympics. That is particularly amusing for me because I was coordinating all the University of Utah activities during that time, which included extensive collaboration with security teams from a number of federal agencies, led by the Secret Service under its authority for a Designated Event of National Significance. The only disturbing part is my concern than my e-mail traffic was so boring that it put the NSA monitors to sleep.

Now to the serious part. Do we really care about privacy of our communications? Privacy activists are struggling to focus public attention on limiting government snooping into our lives. But can it really be focused? “Privacy” has become so elusive, not to say voluntarily relinquished, in the digital age that I don’t know exactly what the focus would be. The younger generation sends around nude photos of themselves and talks about their sex lives knowing full well that it can all be posted online for the world to see.

If the focus were limited to government snooping on citizens, that would be a strong focus but then the technology gets quirky. Banning that would also ban a lot of stuff that people seem to want. For example, look at the security camera phenomenon in London – I think the latest data said that a person is under surveillance by something like 28 cameras at any given time on the streets of London. The use of GPS tracking on an automobile was considered an invasion of privacy by our Supreme Court only because agents physically attached to item to the vehicle. The implication was that drone or other robotic tracking of a vehicle on a public street would not be an invasion of privacy, although four Justices opined that “long-term monitoring of a person’s movements on public streets” could be subject to Fourth Amendment limitations.

Back to the NSA issue, credible law professors say that reading my e-mail under a “reasonable suspicion” standard is just like a stop-and-frisk, which has been upheld under some circumstances. And you can just imagine that people will support the idea of police use of tiny robots to fly into a house to see if there is a dangerous condition before sending in a SWAT team.

These and many more technological advances raise the very serious issue of whether the public really supports the idea of privacy anymore. I hope at least that we can maintain some level of privacy within our own bedrooms and bathrooms, but who knows? Novels and movies have played on this theme for decades before the technology came to its current capabilities. In those depictions, the intrusions into private lives usually began as a reasonably benign desire for peace and security. George Orwell’s 1984, the German movie Lives of Others, and the Pulitzer Prize winning recent novel The Orphan Master’s Son, all show societies starting from a desire for harmony and ending in abuse.

The abuse is not just of individuals but of the entire process of human development, as thought and behavior control stifle human initiative and deprive persons of their unique human existence. How far down this slippery slope will the U.S. go before we focus on the issue of privacy? This is a debate that needs clarity and serious attention.

Wayne McCormack is the E. W. Thode Professor of Law at the University of Utah S.J. Quinney College of Law. Professor McCormack teaches Constitutional Law, Counter-Terrorism, International Criminal Law, Torts, and Civil Procedure.